Scottish Solicitors' Discipline Tribunal

Iain Robertson

A complaint was made by the Council of the Law Society of Scotland against Iain Robertson, solicitor, 7 Causeyside Street, Paisley (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of his breach of the Legal Aid (Scotland) Act 1986 by his seeking and accepting a private payment to account from a client of £31,000 when only £11,792.30 was required to cover work done prior to the date of the grant of legal aid, his deliberately rendering invoices to his client and taking payment for these on a private basis despite knowing a legal aid certificate was in place for the same work, namely fees totalling £21,308.52, his accepting private payments to account of outlays from his client totalling £587.50, his charging his client privately twice in relation to outlays totalling £529.41 and his deliberately retaining funds of £2,137.50 from his client to pay the balance of an expert report where the Scottish Legal Aid Board had abated the fee to £800 from £2,937.50, and his failure to provide his client with an adequate explanation in relation to matters, in particular the fees and outlays in relation to legal aid at the outset, in relation to a divorce action.

The Tribunal censured the respondent and fined him the sum of £5,000.

The Tribunal was extremely concerned by the respondent’s conduct. As a result of the respondent’s actions, his client effectively paid private rates for work which was covered by a legal aid certificate. A further advantage was received by the respondent’s firm in that it received payment of these fees earlier than would have been the case if it had had to wait for the Scottish Legal Aid Board to settle these fees. It is important that solicitors only act in matters in which they are competent and it is clearly stated in the Legal Aid (Scotland) Act 1986 that a solicitor must not take payment from a client privately when a legal aid certificate is in force. The public are entitled to assume that solicitors will act in their best interests, in terms and in accordance with the law. The Tribunal however accepted that what had happened in this case was due to incompetence rather than anything more sinister. The Tribunal also took account of the fact that the respondent responded immediately to the letter from the Board and in effect repaid the money to his client. The Tribunal was of the view that this appeared to be a one-off incident which happened some time ago. The Tribunal did not consider there was any need to restrict the respondent’s practising certificate but imposed a fine of £5,000 in addition to a censure.

Desmond William Donoghue

A complaint was made by the Council of the Law Society of Scotland against Desmond William Donoghue, solicitor, of Ide Legal, 23 Manor Place, Edinburgh (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of his breach of rules 6, 8, 9, 10, 11 and 24 of the Solicitors (Scotland) (Accounts) etc Rules 2001.

The Tribunal censured the respondent and directed in terms of s 53(5) of the Solicitors (Scotland) Act 1980 that the respondent’s practising certificate be subject to a condition that the books and records of the respondent’s practice be inspected by the Council of the Society no later than 30 April 2009 at the expense of the respondent.

The Tribunal was concerned about the numerous breaches of the Accounts Rules and the fact that four inspections and two Guarantee Fund interviews had required to take place in the first two years of the respondent’s practice. However, the Tribunal noted that a recent inspection had shown that the books of the practice were now up to date.

The Tribunal also noted that the respondent was receiving assistance from an experienced accountant and had installed a computerised accounting system. The Tribunal was made aware that there was no question of dishonesty or loss to clients in this case. The Tribunal accordingly censured the respondent and considered that it would be appropriate for the Society to carry out another inspection of the respondent’s books prior to 30 April 2009 to ensure that the progress which had been made recently in bringing the practice’s books up to date was sustained. The Tribunal considered that a further additional inspection was required to ensure that the interests of the firm’s clients were protected. 

Valerie Elaine McKenzie Macadam

A complaint was made by the Council of the Law Society of Scotland against Valerie Elaine McKenzie Macadam, solicitor, formerly of Macadams, 57 Comiston Road, Edinburgh (“the respondent”). The Tribunal found the respondent guilty of professional misconduct in respect of her allowing a petition for confirmation to be presented and then proceeding to administer an estate without the knowledge or concurrence of the nominated executor, her forging the signature of the executor on a stock transfer form, her failure to properly attend to the conclusion of an estate, her deliberately misleading a client as to the contents of a letter sent on her behalf, her acting in a covert fashion by failing to advise a client that she had any intention of acting for her as a limited liability company rather than as a solicitor, her embezzlement of client funds by the presentation of various cheques, her embezzlement of funds belonging to two executries and her breach of rules 4, 6, 8, 9 and 24 of the Solicitors (Scotland) Accounts etc Rules 2001. The Tribunal ordered that the name of the respondent be struck off the Roll of Solicitors in Scotland.

When the case called before the Tribunal on 1 September 2005 there was a motion to adjourn. The Tribunal took account of the medical report from the chartered clinical psychologist lodged on the respondent’s behalf and noted that the respondent had difficulty instructing a solicitor and concentrating. The Tribunal however also noted that the respondent appeared to be well enough to work and had been working for the last 12 months. The Tribunal had to balance the interests of the respondent against the public interest of having the matter dealt with.

In this case there was a long history. One of the complaints had been with the Tribunal since April 2004; there had been four previous callings of the case and on each occasion there had been last minute motions for an adjournment. The Tribunal further took account of the fact that the respondent had not lodged any answers disputing any of the facts in the complaints. Although the medical report suggested there might be an improvement in the respondent’s concentration in six to eight weeks’ time, this was by no means a certainty. The Tribunal accordingly considered that it was appropriate to refuse the adjournment and the matter proceeded in the respondent’s absence.

The Tribunal heard evidence from a number of witnesses and was satisfied beyond reasonable doubt that the majority of the facts and averments in the two complaints before the Tribunal were established. The Tribunal agreed to conjoin the two complaints and found that the respondent’s conduct singly and in cumulo amounted to professional misconduct. As the respondent was not present there was no mitigation put forward on her behalf. The Tribunal was extremely concerned by the respondent’s conduct. She had used her position as a solicitor in order to embezzle clients’ funds using a calculated and devious scheme in order to do so. The respondent had also forged a signature, deceived a client and acted in a covert fashion. This conduct was completely contrary to what is expected of a solicitor and brought the profession into disrepute in the worst possible way. The Tribunal found that the respondent was clearly not a fit and proper person to remain on the Roll of Solicitors in Scotland. The Tribunal ordered that publicity be deferred until after the conclusion of any criminal proceedings against the respondent so as to avoid prejudice to any such proceedings.